Opinion
No. CV06 500 52 20
January 11, 2011
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICTS
The Plaintiff, Vannah Griffin, as the Admimistratrix of the estate of her deceased husband, the Rev. Richard C. Griffin, and on her own behalf for loss of consortium, instituted the present medical malpractice action against various medical providers arising out of the death of Rev. Griffin in July of 2004.
The plaintiff instituted suit against Dr. Elmer Valin and Elmer Valin, LLC; The Hospital of St. Raphael; Dr. William C. Fitzgerald and the St. Vincent's Medical Center. At the conclusion of the plaintiff's presentation of evidence, the court directed a verdict in favor of the Hospital of St. Raphael and Dr. Fitzgerald. The jury returned a verdict in favor of the remaining defendants. The plaintiff has now filed a Motion to Set Aside the Verdicts.
The decedent, Rev. Richard C. Griffin, underwent an apparently successful gastric bypass surgery performed by Dr. Valin at the Hospital of St. Raphael's in November of 2002. In June of 2004, the Rev. Griffin was admitted to St. Mary's Hospital in Waterbury, Connecticut, with abdominal pain. It was determined that he needed an operation and he preferred to be operated on by Dr. Valin because he had performed the gastric by-pass surgery. Accordingly Rev. Griffin was transferred to St. Raphael's Hospital where he was admitted on June 29, 2004. Rev. Griffin underwent an operation by Dr. Valin to relieve a small bowel obstruction and he was discharged from the hospital July 2, 2004. The plaintiff's medical expert, a surgeon, testified that he had no criticism of St. Raphael's Hospital or Dr. Valin with respect to either the gastric by-pass operation or the operation to relieve the small bowel obstruction. When Rev. Griffin was discharged from St. Raphael's Hospital he was given discharge instructions to call Dr. Valin if the wound developed any redness, swelling, increased pain or drainage from the incision.
The plaintiff claims that shortly after the discharge from the hospital Rev. Griffin began discharging foul smelling material from the operation site. The plaintiff claims she telephoned Dr. Valin's office, spoke to him and described the large quantities of foul smelling material. The plaintiff testified that Dr. Valin told her not to worry about it, that it was normal and that she had an appointment to come in the office the following week. The plaintiff testified that she was told that Rev. Griffin could just keep his scheduled appointment several days hence. Dr. Valin testified that such a conversation never occurred. If the described conditions existed, Dr Valin also testified that the patient should be seen immediately and evaluated.
A few days later Dr. Valin did speak with the decedent's wife and she described similar conditions. Dr. Valin told the plaintiff that Rev. Griffin should be taken immediately to the nearest hospital. Rev. Griffin was then taken by ambulance to St. Vincent's Medical Center where he arrived at approximately 6:45 a.m. Upon his arrival at the St. Vincent's Medical Center, Rev. Griffin, who had previously experienced cardiac by-pass surgery, was believed to be suffering a heart attack, had a very low blood pressure, had a raging infection in his abdomen, was disoriented and was believed to be having kidney failure. His vital signs were extremely low. Rev. Griffin was the subject of multi-discipline evaluation and it was apparent he needed a debridement procedure for the infection. Rev. Griffin was given medication to improve the symptoms diagnosed upon arrival and he was transferred to the Intensive Care Unit at approximately 12:15. The debridement procedure for removing the infection in the abdomen began at approximately 6:30 p.m. The procedure was interrupted after approximately 70% of the infected material had been removed. The procedure was stopped because of the belief that he was in danger of dying at the bedside where the procedure was being performed.
The plaintiff's medical expert, a surgeon, testified that, while debridement could have been begun upon arrival at the hospital, it was a deviation from the standard of care not to begin the debridement procedure at 12:15 when Rev. Griffin was transferred to the Intensive Care Unit and that the debridement procedure should be continued until all the infected tissue was removed. The defendants presented evidence that in order to have an opportunity for successful medical treatment, the medical conditions of Rev. Griffin had to be improved before operative procedure could be started and that it was within the standard of care to begin the debridement at approximately 6:30 when it was actually begun. The Reverend Griffin died a few days later.
With respect to the Hospital of St. Raphael the plaintiff claims that although Dr. Valin was not an employee of the hospital he was an agent of the hospital and the hospital was responsible for Dr. Valin's actions causing the Rev. Griffin not to be immediately evaluated during the telephone conversation which Dr. Valin denies ever occurred. The plaintiff claims that the agency is established because Dr. Valin assisted Rev. Griffin in signing a consent form to be given to the hospital before the small bowel operation could take place and that the discharge instructions given to Rev. Griffin by the hospital shows an agency relationship. The plaintiff also claims that The Hospital of Saint Raphael routinely performed administrative tasks such as typing up operative reports, etc. when Dr. Valin performed procedures or operations at the hospital. The plaintiff therefore claims that, because of the existence of factual questions concerning agency, the court was in error in directing a verdict in favor of the Hospital of St. Raphael. The plaintiff agrees that there was no medical evidence of a deviation from the applicable standard of care by either Dr. Valin or The Hospital of St. Raphael when Rev. Griffin was a patient in that hospital
"Agency is fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control and consent by the other to so act." Beckenstein v. Potter Sign Carrier, Inc., 191 Conn. 120, 132 (1983). By contrast, an "independent contractor" is one who "contracts to do a piece of work according to his own methods and without subject to the control of his employer, except as the results of his work." Panero v. Electrolux, Corp., 208 Conn., 589, 604 (1988). None of the duties cited by the plaintiff as establishing an agency relationship have anything to do with control of the manner or methods by which Dr. Valin treated his patients in the after discharge care he provided to his patients. Performing administrative tasks or having staff privileges does not establish agency. Such cases as Menzie v. Windham County Memorial Hospital, 774 F.Sup. 91, 95 (DC Conn., 1991); Zbras v. St. Vincent's Medical Center, 32 Conn. L. Rptr. 670 (2002) (Thim, J.); Spaulding v. Rovner, 47 Conn. L. Rptr. 544 (2009) (Jennings, J.). The existence of an agency relationship does not exist when the claimed errors occurred after discharge from the medical treating facility. See Walker v. Temple Surgical Center, superior court State of Connecticut, complex litigation, docket no. X10CV065005306 (Nov. 3, 2008, Scholl, J.).
There was no medical evidence that the hospital of Saint Raphael was even claimed to have deviated from any standard of care during the time that Rev. Griffin was a patient in that hospital. There is insufficient evidence for the jury to return a verdict in favor of the plaintiff against the hospital on the issue of agency. Accordingly it was not error of the court to direct a verdict in favor of the Hospital of Saint Raphael.
The plaintiff also claims it was error for the court to direct a verdict in favor of Dr. Fitzgerald, who is not a surgeon, for his treatment at the St. Vincent's Medical Center. The plaintiff claims that a number of hypothetical questions were asked of the plaintiff's medical expert witness which the court did not allow. The plaintiff's sole medical expert testified that he'd reviewed the hospital records which did not tell what Dr. Fitzgerald did or did not do while Rev. Griffin was a patient in the hospital. He was aware that the record showed that Rev. Griffin was placed under the care of Dr. Fitzgerald. However, the plaintiff's expert also testified there was nothing wrong with the hospital records not referring to Dr. Fitzgerald because many doctors are in that position and act through other individuals such as residents. A question asked of the medical expert with respect to Dr. Fitzgerald's claimed deviation from the standard of care are meaningless since the records do not provide the expert with a basis upon which to form an opinion. If questions were asked of the expert to assume certain stated facts and whether he had an opinion on the basis of those facts, a hypothetical question might be appropriate. But a general question based upon records that do not reveal to the expert any information would serve no useful purpose. Accordingly the court felt it was appropriate to direct a verdict in favor of Dr. Fitzgerald on the grounds that there was no medical evidence to indicate that he deviated from the applicable standard of care.
The plaintiff also claims that the court erred in charging the jury that damages for death could not be awarded against St. Vincent's Medical Center. Plaintiff's medical expert testified the infection from which Rev. Griffin was suffering from had a 25% mortality rate once the infection begins. However the plaintiff's medical expert testified that he did not have an opinion as to whether an individual suffering from the conditions that Rev. Griffin was suffering from upon arrival at St. Vincent's Medical Center had more than a 50% chance of surviving with appropriate medical treatment. In theory, the jury would be entitled to disregard the evidence presented by the defendants that Rev. Griffin had only a 30% of surviving when he arrived at the St. Vincent's Medical Center. However, in order to recover damages for death, the plaintiff must submit evidence "that prior to the defendant's alleged negligence, the plaintiff had a chance of survival of at least 51%," Boone v. Wm. W. Backus Hospital, 272 Conn. 551, 574 (2005). The plaintiff produced no evidence as to the potential for recovery for the decedent with the conditions of the decadent when he arrived at the St. Vincent's Medical Center. Accordingly the charge to the jury was appropriate.
The plaintiff also asserts that the court erred in not allowing into evidence, numerous medical journal articles offered by the plaintiff. Dr. Kaplan, the plaintiff's expert, testified that he did not need to look at articles in relation to this particular case and that he did not need rely on specific articles to form the opinions he expressed. When the expert was asked where a particular article was authoritative the doctor specifically stated, no document as a stand alone document is authoritative. The fact that a necrotizing soft tissue infection from which the decedent was suffering is a dangerous condition was not an issue in the case. The issues in the case were fairly submitted to the jury and the direction of the verdict for two of the defendants were warranted.
Accordingly the Motion to Set Aside The Verdicts is hereby denied.